As discussed in our Family-Based Immigration article, U.S. citizens and lawful permanent residents (LPRs or green card holders) can petition for certain family members to receive lawful permanent resident status, which will allow them to live and work in the U.S. This article explains the process for U.S. citizens and LPRs to file petitions for their spouses to obtain a marriage-based green card. Please see our Business Immigration article for information about obtaining a green card through employment. Also, please see our Family Petition article for information about sponsoring family members other than spouses. The immigration process for a foreign national married to a U.S. citizen or LPR may be complicated, and the respective immigration process depends on a variety of factors. You may want to seek the assistance of a Michigan green card lawyer. However, the basic procedures for U.S. citizens or LPRs to petition for their foreign national spouse is explained here to provide you with a general understanding. For an assessment of your situation, or for assistance, please contact the immigration attorneys in our office to schedule a consultation.
Green Card Eligibility in General
Green card applicants must determine eligibility before beginning the application process. Many applicants apply based on familial relationships, but employment visa holders may also be eligible. Family members are eligible to apply for a green card if they are closely related to a U.S. Citizen or lawful permanent resident. Spouses and children, as well as elderly parents, may apply for a green card based on their relationship to the U.S. citizen. Siblings of a US citizen are eligible if their brother or sister is 21 years of age or older. It is important to note that relatives of LPRs may also qualify for a green card based on their relationship.
Individuals with permanent work visas may apply for a green card. Workers with extraordinary ability, holders of advanced degrees, and skilled employees are eligible. However, preference will be given to employees with advanced degrees and considerable experience.
Refugees and asylees are eligible for an adjustment of status after remaining in the United States for at least a year after they are granted access to the country. Survivors of crimes and human trafficking are eligible if they have the requisite non-immigrant visa. In some situations, abused spouses, parents, and children of a U.S. citizen may apply for a green card by self-petitioning.
Process of Obtaining a Green Card Through Marriage to a U.S. Citizen
The first step for a U.S. citizen or LPR to sponsor his or her foreign national spouse for LPR status (i.e. a green card) is the filing of Form I-130, Petition for Alien Relative. This petition must be filed with U.S. Citizenship and Immigration Services (USCIS) in the U.S. (Note that a very limited number of U.S. Consulates will allow certain U.S. citizens to file this petition directly with the Consulate.) The purpose of this petition is to establish the bona fide nature of the marriage, to confirm that it is a “real” marriage and not one entered into merely for the purpose of obtaining immigration benefits. Once it is determined that the marriage is bona fide and the petition is approved, either USCIS (or the Department of State) must determine whether the foreign national spouse qualifies for LPR status under the law, and whether he or she merits approval. Please note that a foreign national spouse of a U.S. citizen is not entitled to a green card/LPR status; LPR status is considered a discretionary benefit, and unless there are compelling negative factors, discretion is generally favorably exercised, resulting in an approved application.
The rest of the process, which may occur concurrently with the filing of the I-130, depends on a variety of factors. This article will discuss adjustment of status and consular processing for foreign national spouses of U.S. citizens and LPRs. Our dedicated attorneys in Michigan could help someone with the LPR process.
Adjustment of Status based on Marriage to a U.S. Citizen
For foreign national spouses present in the U.S., it may be possible to adjust status to that of a permanent resident without leaving the U.S. This may be an option for foreign nationals who are lawfully present, such as one whose I-94 has not expired, as well as those who overstayed a visa and are no longer in legal status. This may be true even where the foreign national worked without authorization. However, those who entered the U.S. without inspection may not be eligible for adjustment of status. For more details about eligibility, please see our article about Adjustment of Status.
A foreign national spouse, who is in the U.S. and eligible to apply for adjustment of status, may file the application (Form I-485) concurrently with the I-130 petition filed by the U.S. citizen on his or her behalf. This is because an immigrant visa is immediately available to a foreign national married to a U.S. citizen upon approval of the I-130. This means that it is possible for spouses of U.S. citizens to obtain a green card as soon as the I-130 is approved.
In the majority of cases, the process culminates with an in-person interview of the married couple by an Adjudication’s Officer at the local USCIS Office, during which time a determination is made as to whether the marriage is bona fide and whether the foreign national can and should be approved as an LPR/green cardholder. Foreign nationals with any type of criminal record, including arrests or convictions, may be “inadmissible,” and therefore not eligible for LPR status. In some cases, there may be a waiver available, which would allow someone otherwise ineligible to become an LPR to adjust status anyway. Denial of adjustment of status may lead to removal proceedings, particularly for foreign nationals with a criminal record. We strongly recommend that foreign nationals with a criminal record of any type contact our office for a consultation.
The process of adjustment of status may take much less time and be much simpler than consular processing, explained below. It generally takes USCIS between three and eight months to adjudicate adjustment of status applications. However, this estimate changes and depends in large part on which office processes the application. Processing time estimates are accessible via the USCIS website, www.uscis.gov.
Additional benefits that may be sought concurrently when filing for adjustment of status include employment authorization (Form I-765) and advance parole (Form I-131). The filing fee for Form I-485 automatically includes the fees for these applications. Both employment authorization and advance parole applications take approximately 90 days to adjudicate, which often means they will be decided before the adjustment of status application is decided. An advance parole document allows someone who has a pending marriage-based adjustment of status application to leave the U.S. and return while the application remains pending. Anyone with a pending adjustment of status application who departs the U.S. without advance parole may not be admitted to the U.S. and his or her application for adjustment of status may be deemed abandoned and terminated by USCIS. Our Michigan lawyers could help you obtain a green card through the adjustment of status process.
Consular Processing Based on Marriage to a U.S. Citizen
In cases where the foreign national spouse is outside the U.S. (or if he or she is in the U.S. but not eligible for adjustment of status), he or she must seek an immigrant visa (resulting in LPR status) through consular processing. This process may take much longer than the adjustment of status method, often lasting at least a year.
Again, the first step is for the U.S. citizen spouse to file the I-130, Petition for Alien Relative, with USCIS in the U.S. If the petition is approved, it will be forwarded to the National Visa Center (NVC). The NVC will request additional documentation and fees from the petitioner. The petitioner has up to one year to provide the documentation and pay the fees, or the approved petition will be terminated and no longer viable. The petitioner may notify the NVC prior to the one-year deadline that he or she intends to pursue the visa and request that it not be terminated. Once the petition is terminated, a new I-130 must be filed.
Upon receipt of the properly submitted documentation and fees, the NVC will then forward the petition and supporting documentation to the applicable U.S. Consulate, depending on the location of the foreign national spouse. The NVC, in coordination with the U.S. Embassy or Consulate will schedule an interview at the appropriate U.S. Embassy or Consulate. The foreign national will be notified of any procedures or documentation necessary for the interview. This includes details about how and where the foreign national spouse may complete the medical examination prior to the interview. Each U.S. Consulate maintains its own rules and procedures for preparing for and attending immigrant visa interviews. Wait times for interviews depend on the U.S. Consulate.
For those foreign national spouses who are present in the U.S. but not eligible for adjustment of status, which is true for most of those who entered the U.S. without inspection, they may be able to obtain LPR status via consular processing. In this case, he or she will need to depart the U.S. and attend the interview at the U.S. Consulate. Depending on the country of origin, he or she may need to obtain civil documentation requested by the NVC in person, and therefore may need to depart the U.S. well before the U.S. Consulate even receives the petition. If you would like assistance with the green card process, please contact one of our Michigan attorneys for a consultation.
Consular Processing Based on Marriage to an LPR
For foreign national spouses of LPRs, rather than of U.S. citizens, the major difference in the process is that the foreign national spouse cannot automatically apply for and/or obtain a green card when the I-130 is approved by USCIS. Instead, he or she must wait until an immigrant visa becomes available before the NVC will request and accept the documentation and fees required to forward the petition to the U.S. Consulate for an interview. The wait time for visa availability is found at the U.S. Department of State’s Visa Bulletin website. Spouses of LPRs fall under the “Family-Sponsored Preference 2A” category. Please contact a Michigan green card lawyer to schedule a consultation if you would like to discuss your case in detail.
Speak with a Green Card/Legal Permanent Resident Attorney
If you are hoping to work and live in the US permanently, you should consult a Michigan immigration green card/LPR lawyer to help you through the legal process. Our team at our AV rated immigration law firm could guide you through each step to ensure any potential mistakes are avoided. For more information about how our attorneys could help, call or contact our office today.
